Full Judgment
CRR No.1490 of 2012 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.1490 of 2012 Date of decision : April 01, 2013 Saroop Singh, .....Petitioner v.
State of Punjab, .....Respondent *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr.H.S.Sangha, Sr.Advocate with Mr.Narinder Singh, Advocate for the petitioner.
MRS.Amarjeet Khurana, Addl.
A.G Punjab *** 1.
Whether Reporters of Local Newspapers may be allowed to see the judgment ?.”
2. To be referred to the Reporters or No.?.”
3. Whether the judgment should be reported in the Digest ?.
*** AJAY TEWARI, J (Oral) This petition has been filed challenging the order dated 7.5.2012 summoning the petitioner under Section 319 of the Cr.P.C.As per the FIR, Rajwinder Singh @ Raju grand son of the relative of the informant was waylaid by about 8 to 10 persons who caused him various injuries.
Thereafter presuming him to be dead, they retreated.
The informant/eye witness went towards Raju and gave him some water.
At that stage, the petitioner along with his co-accused Sarabjit Singh raised a lalkara exhorting others that Raju had not died and, therefore, job should be finished.
At that, the other assailants again attacked Raju and killed him.
The police having found the petitioner and his co-accused innocent, they CRR No.1490 of 2012 ::2:: were not charged.
However, they were summoned under Section 319 of the Cr.P.C after the statement of the informant was recorded but before cross examination could be conducted.
Revision against the said order was dismissed by this Court vide order dated 12.10.2006.
The said order dated 12.10.2006 was impugned before the Hon'ble Supreme Court.
The Hon'ble Supreme Court in Sarabjit Singh and another v.
State of Punjab, 2009(3) RCR (Criminal) 388, set aside the order and remitted the case back to the trial Court for fresh decision, by noticing as follows :- “16.
We have noticed herein before that Mohd.
Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned.
There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken.”
18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose.
Different standards are required to be applied at different stages.
Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion.
While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question.
The answer to these questions should be rendered in the affirmative.
Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would CRR No.1490 of 2012 ::3:: not be satisfied.”
After the remand by the Hon'ble Supreme Court, the trial Court has passed an order again summoning the petitioner and his co-accused under Section 319 of the Cr.P.C.It must be noticed, however, that on this occasion, the order has been passed after cross-examination of the informant has taken place.
Learned senior counsel for the petitioner has argued that the trial Court has mechanically passed the order of summoning without meeting the strict parameters laid down by the Hon'ble Supreme Court.
Learned counsel for the respondent, on the other hand, has argued that the trial Court has relied upon the sworn testimony of the eye witness and has pointedly brought to the notice of the Court that the testimony regarding the role played by the petitioner could not be shaken during cross-examination even though questions were put to the informant in that regard.
As per her, had no question been put to the informant with regard to the role played by the petitioner, the situation may have been different but when a Court is confronted with the eye witness testimony which, despite attempts, is not shaken with regard to the additional accused, the only conclusion which can be arrived at would be that the accused are likely to be convicted if that testimony is believed.
Counsel for the respondent has further argued that the testimony of cross examination would satisfy the test of fresh evidence.
In my opinion, the arguments raised by counsel for the respondent cannot be brushed aside.
The testimony of an eye witness which comes through his cross examination would atleast in the present case meet CRR No.1490 of 2012 ::4:: the requirement as laid down by the Hon'ble Supreme Court in Sarabjit Singh and another case (supra).The only question which would ultimately arise would be whether the testimony is found credible after a full trial.
At this stage, it would not be appropriate for this Court to comment on this aspect because that would lie within the purview of the trial Court.
Consequently, finding no merit in this revision petition the same is dismissed.
( AJAY TEWARI ) April 01, 2013.
JUDGE `kk'